this list has been copied word for word without change from www.communityinterest.org/alliance/porn%2050%20state%20survey.htm,
except for a more descriptive title and minor formatting changes. since
we do not know how accurate or how recent is this information, we may update
the information—would someone please volunteer to help us?

by the way, is exposing 12 year olds to clearly inappropriate language in books
"educational"? does a paragraph or two at the end of the book stating
how such behavior is inappropriate make the book "educational" or
"scientific"? the ala thinks so, do you?

alabama � employees of public libraries potentially liable under statute

conclusion: employees of public libraries, under certain circumstances, could
be prosecuted in alabama, under code of ala. § 13a-12-200.5 (2001), regarding
the distribution of obscene materials to minors. although in accordance with
code of ala. § 13a-12-200.10, an affirmative defense is available to public
libraries and employees acting on behalf of the legitimate educational purposes
of public libraries, arguably library employees could not invoke the defense
under all circumstances. since code of ala. § 13a-12-200.5 pertains to
the non-commercial dissemination to minors of obscene print materials and internet
images, public library employees could be held liable under the statute, where
they are unable to invoke the defense.

analysis:
1) statute could apply to employee not acting on behalf of legitimate educational
purposes of library in disseminating obscene material to minors
employees of a public library could be prosecuted for disseminating obscene
material to minors under code of ala. § 13a-12-200.5. in accordance with
code of ala. § 13a-12-200.10 � the criminal provisions of this division
shall not apply to bona fide public libraries, or public school or college or
university libraries, or their employees or agents acting on behalf of the legitimate
educational purposes of such public libraries, or public school or college or
university libraries.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries is subject
to varying fact-specific interpretations. although the defense protects a bona
fide library and public library employees acting on behalf of legitimate educational
purposes of library, arguably the defense would not be available to public library
employees who act without legitimate educational justification in disseminating
obscene material to minors. for example, where a public library employee knowingly
permits a minor to access an unfiltered internet screen, in contravention to
the library�s established internet use policy requiring minors to use filtered
terminals, and where the minor has no educational purpose for obtaining the
obscene material, in a prosecution under the statute, it is likely that the
employee would be unable to establish that he was acting on behalf of the legitimate
educational purposes of the library.

2) statute applies to the non-commercial dissemination of obscene materials
to minors
since code of ala. § 13a-12-200.5 pertains to the non-commercial dissemination
of obscene print materials and internet images, public library employees could
be held liable under the statute, where they are unable to invoke the defense.
code of ala. § 13a-12-200.5(1) states: � it shall be unlawful for any person
to knowingly or recklessly distribute to a minor, possess with intent to distribute
to a minor, or offer or agree to distribute to a minor any material which is
harmful to minors.�

alaska -- (alaska does not have a harmful to minors statute relating
to the dissemination of harmful materials to minors)

conclusion: alaska does not have a statute that addresses the distribution
of harmful materials to minors. however, alaska does have related statutes.
code of ala. §11.66.300 prohibits minors from being present at an adult
entertainment business. code of ala. § 11.61.123 makes it a crime for a
person to knowingly view or produce a picture of the private exposure of the
genitals, anus or female breast of another, under certain circumstances. code
of ala. § 11.61.125 proscribes the distribution of child pornography, and
code of ala. § 11.61.127 makes it a crime to knowingly possess child pornography.
however, none of the aforementioned statutes contain provisions relating to
the liability of libraries, their agents or employees for the distribution of
harmful materials to minors.

arizona � 1) statute applies to public libraries and their employees
with regard to print materials
2) statute appears to be inapplicable to libraries and their employees with
regard to harmful materials sent over the internet because the statute proscribes
only transmission or sending of materials over the internet

conclusion: a public library and its employees can be prosecuted under the arizona
statute, a.r.s. § 13-3506 (2001), regarding furnishing harmful items to
minors, because the statute contains neither a public library exemption, nor
a defense which a public library could invoke and applies to the non-commercial
furnishing of harmful materials to minors. notably, the statute applies to the
furnishing of print materials only.

a.r.s. § 13-3506.01, applies to the furnishing of harmful items to minors
via the internet. that provision makes it unlawful to transmit or send over
the internet an item that is harmful to minors. this provision appears to be
inapplicable to public libraries because libraries provide access to the internet,
rather than transmit or send materials.

analysis
1) a public library and its employees can be prosecuted under the arizona statute
regarding the non-commercial furnishing to minors of print materials harmful
to minors
a public library and its employees can be prosecuted under a.r.s. § 13-3506
(2001), regarding furnishing harmful items to minors, because the statute contains
neither a public library exemption, nor a defense which a public library and
its employees could invoke. moreover, the statute applies to the non-commercial
furnishing to minors of harmful materials. in accordance with a.r.s. §
13-3506(a), �it is unlawful for any person with knowledge of the character of
the item involved to recklessly furnish, present, make available, give, lend,
show, advertise, or distribute to minors any item that is harmful to minors.�
as further stated in a.r.s. § 13-3506(b), �this section does not apply
to the transmission or sending of items over the internet.�

2) a public library and its employees appear exempt from the arizona statute
regarding the furnishing of harmful materials to minors via the internet

a public library and its employees probably could not be prosecuted under the
arizona statute a.r.s. § 13-3506.01, regarding the furnishing of harmful
materials to minors via the internet. a.r.s. § 13-3506.01(a) provides:
�it is unlawful for any person, with knowledge of the character of the item
involved, to intentionally or knowingly transmit or send over the internet an
item to a minor that is harmful to minors, when the person has knowledge or
reason to know, at the time of the transmission that a minor in this state will
receive the item.� notably, �posting material on an internet web site does not
constitute the act of transmitting or sending an item over the internet.� a.r.s.
§ 13-3506.01(c).

arkansas - statute applies to public libraries and their employees
with regard to print materials only

conclusion: a public library and its employees can be prosecuted under the
arkansas statute, a.c.a. § 5-68-502 (2001), regarding the dissemination
to minors of materials harmful to minors, because the statute contains neither
a public library exemption, nor a defense that a public library could invoke.
notably, the statute applies to the non-commercial dissemination of print materials
only.

analysis
1) a public library and its employees can be prosecuted under the arkansas statute
regarding the non-commercial dissemination to minors of materials harmful to
minors
a public library and its employees can be prosecuted under a.c.a. § 5-68-502,
regarding the dissemination to minors of print materials that are harmful to
minors, because the statute contains neither a public library exemption, nor
a defense that a public library could invoke. moreover, the statute applies
to the non-commercial dissemination to minors of harmful materials. in accordance
with a.c.a. § 5-68-502 (2)(a), �it shall be unlawful for any person, including,
but not limited to, any persons having custody, control, or supervision of any
commercial establishment, to knowingly: (2)(a)sell, furnish, present, distribute,
allow to view, or otherwise disseminate to a minor, with or without consideration,
any material which is harmful to minors.�

2) statute does not apply to the dissemination to minors of harmful materials
on the internet

in arkansas, a public library and its employees can be held liable for the
dissemination to minors of print materials that are harmful for minors. �material�
as defined in a.c.a. § 5-68-501(6) means �any book, magazine, newspaper,
pamphlet, poster, print, picture, figure, image, description, motion picture,
film, record, recording tape, cd-rom disk, magnetic disk memory, magnetic tape
memory, video tape, or other media, but does not include matters displayed,
transmitted, retrieved, or stored on the internet or other network for the electronic
dissemination of information.�

california � public libraries presently not liable under statute

conclusion: public libraries are not liable in california, under cal pen code
§ 313 (2001), for the distribution of harmful matter to minors. in accordance
with cal. pen. code § 313.3, an affirmative defense is available where
the distribution or exhibition of harmful matter to minors was committed in
aid of leg mate scientific or educational purpose. in accordance with moore
v younger (1976) 54 ca3d 1122, 127 cal rptr 17, the defense exempts public librarians
from liability for the distribution of harmful matter to minors.

a public library cannot be prosecuted under the california statute, cal pen
code § 313, regarding the distribution of materials harmful to minors.
in accordance with cal. pen. code § 313.3, �it shall be a defense in any
prosecution in violation of this chapter that the act was committed in aid of
legitimate scientific or educational purposes.�

moore v younger (1976) 54 ca3d 1122, 127 cal rptr 171, is instructive regarding
the proper interpretation of the defense provision as it applies to public libraries
and their employees. in moore v. younger. plaintiff librarians and library associations
had filed suit against the attorney general seeking to have the harmful to minors,
section 313.3 statute declared unconstitutional. the lower court determined
that librarians were exempted from coverage of 313(a), and plaintiffs appealed
the ruling, seeking a declaration that the harmful matter statute pen. code,
§§ 313-313.5, making criminal the distribution of obscene material
to minors and as applied to them was unconstitutional on its face and as applied
to them. the court determined that plaintiffs were not an aggrieved party, since
the trial court's judgment, declaring that it was the intention of the legislature
to provide librarians with exemption from application of the statute, adequately
protected all plaintiffs as librarians.

colorado � statute does not apply to public libraries and their employees

conclusion: public libraries and their employees cannot be prosecuted under
the colorado statute, c.r.s. 18-7-502 (2001), regarding the dissemination of
materials harmful to minors, because the statute is premised upon the commercial
dissemination of harmful materials to minors.

analysis:

1) statute applies to the commercial dissemination of harmful materials

c.r.s. 18-7-502 (2001) regarding the dissemination of harmful materials to
minors does not apply to public libraries and their employees, because the statute
is premised upon the commercial dissemination of harmful materials to minors.
c.r.s. 18-7-502 (2001), provides: �it shall be unlawful for any person knowingly
to sell or loan for monetary consideration to a child,� material harmful to
minors. public libraries and their employees are not implicated in the statute,
because they do not exchange their materials for monetary consideration.

connecticut - statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under
the connecticut statute regarding obscenity as to minors, conn. gen. stat. §
53a-196 (2001), because the statute is premised upon the promotion of obscenity
for monetary consideration.

analysis:

2) statute applies to the commercial dissemination of harmful materials

conn. gen. stat. § 53a-196, regarding obscenity as to minors, does not
apply to public libraries, because the statute is premised upon the promotion
of obscenity to minors, for monetary consideration. conn. gen. stat. §
53a-196(a) provides: �a person is guilty of obscenity as to minors when he knowingly
promotes to a minor, for monetary consideration, any material or performance
which is obscene as to minors.� public libraries are not implicated in the statute,
because they do not exchange their materials for monetary consideration.

delaware - statute not applicable to public libraries and their employees

conclusion: public libraries and their employees can not be prosecuted under
the delaware statute, 11 del. c. § 1365 (2001)(i), regarding the dissemination
to minors of harmful materials, pursuant to an exemption that specifically names
public libraries among those who can not be prosecuted.

analysis:

1) statute contains an exemption for public libraries and their employees

a public library, and its employees can not be prosecuted under the delaware
statute, 11 del. c. § 1365 (2001)(i), regarding the dissemination to minors
of harmful materials, because the statute contains an exemption as set forth
in 11 del. c. § 1365 (k)(3), that no person will be subject to prosecution
�where such person is a bona fide school, museum or public library or is acting
in an official capacity as an employee of such organization or as a retail outlet
affiliated with and serving the educational purposes of such organization.�

district of columbia � public libraries potentially liable under statute

conclusion:

public libraries could, under certain circumstances, be held liable in the
district of columbia, under d.c. code § 22-2201(b)(1), regarding the dissemination
to minors of print materials and internet images that are not suitable for minors.
although in accordance with d.c. code § 22-2201(c), an affirmative defense
is available where the dissemination of harmful materials is to institutions
or individuals having �educational justification� for possessing the material,
the applicability of the defense to public libraries is fact specific, and public
libraries would not, under all factual scenarios, be permitted to invoke the
defense. .

analysis:

1) statute could apply to library where their dissemination of materials not
suitable for minors is to minors who have no scientific, educational or other
special justification for possessing the material
a public library could be held liable in a prosecution under the district of
columbia statute, d.c. code § 22-2201(b)(1), regarding the dissemination
to minors of materials that are not suitable for minors. in accordance with
d.c. code § 22-2201(c), �it shall be an affirmative defense to a charge
of violating subsection (a) or (b) of this section that the dissemination was
to institutions or individuals having scientific, educational, or other special
justification for possession of such material.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries is subject
to varying fact-specific interpretations. one can readily anticipate numerous
factual scenarios where children could access materials in a library, that are
not suitable for minors, and for which they have no educational or other special
justification for possessing the material. for example, where a 7 year old surfs
the net at an unfiltered computer terminal in a public library, in contravention
to library policy, and obtains materials that are not suitable for minors, without
educational justification such as a research project, it appears highly unlikely
that a library would be able to invoke the �educational justification� defense.

2) statute applies to the non-commercial dissemination of materials not suitable
for minors
since d.c. code § 22-2201 (b)(1)(a) pertains to the non-commercial dissemination
of materials that are harmful to minors, a public library could be held liable
under the statute, where it is unable to invoke the �educational justification�
defense. d.c. code § 22-2201 (b)(1)(a) states that it is unlawful to �sell,
deliver, distribute, or provide, or offer to agree to sell, deliver, distribute
or provide to a minor�� materials which are not suitable for minors.

3) statute applies to both print materials and internet images

in the district of columbia, a public library could be held liable for the
dissemination to minors of both print materials and internet images that are
harmful to minors. material, as defined in d.c. code § 22-2201(b)(1)(a),
includes: (i) �any picture, photograph, drawing, sculpture, motion picture film,
or similar visual representation or image of a person or portion of the human
body, which depicts nudity, sexual conduct, or sado-masochistic abuse and which
taken as a whole is patently offensive because it affronts prevailing standards
in the adult community as a whole with respect to what is suitable material
for minors, as well as, (ii) any book, magazine, or other printed matter however
reproduced or sound recording, which depicts nudity, sexual conduct, or sado-masochistic
abuse or which contains explicit and detailed verbal descriptions or narrative
accounts of sexual excitement, sexual conduct, or sado-masochistic abuse and
which taken as a whole is patently offensive because it affronts prevailing
standards in the adult community as a whole with respect to what is suitable
material for minors.

clearly, the statute applies to print materials, which are plainly referenced
as material not suitable for minors, in d.c. code § 22-2201(b)(1)(a)(ii)
aforementioned. the statute also applies to internet images, since the broad
language �or similar visual representation or image�, set forth in d.c. code
§ 22-2201(b)(1)(a)(i), can be construed to encompass internet images.

florida � statute applies to public libraries and their employees with
respect to obscene materials but not with respect to materials that are harmful
to minors

conclusion: a public library and its employees can be prosecuted under the florida
statute, fla. stat. § 847.0133 (2001), regarding the dissemination to minors
of obscene materials, because the statute contains neither a public library
exemption, nor a defense that a public library and its employees could invoke.
moreover, the statute applies to the non-commercial dissemination to minors
of obscene print materials and internet images. notably, a public library and
its employees cannot be prosecuted under the florida statute regarding the dissemination
of harmful materials to minors, since the statute is premised on the dissemination
of harmful materials for monetary consideration

analysis
1) a public library and its employees can be prosecuted under the florida statute
regarding the dissemination to minors of obscene materials, since the statute
contains no exemption or defense and applies to the non-commercial dissemination
to minors of obscene materials
a public library and its employees can be prosecuted under fla. stat.

§ 847.0133 regarding the dissemination to minors of obscene materials,
because the statute contains neither a public library exemption, nor a defense
that a public library and its employees could invoke. moreover, the statute
applies to the non-commercial dissemination of pornographic materials for minors.
in accordance with fla. stat. § 847.0133(1), �it is unlawful for any person
to knowingly sell, rent, loan, give away, distribute transmit, or show any obscene
material to a minor.�

in florida., a public library and its employees can be held liable for the
dissemination to minors of obscene print materials and internet images. �obscene
material� as referenced in fla. stat. § 847.0133(1) means: �any obscene
book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written
or printed story or article, writing paper, card, picture, drawing, photograph,
motion picture film, figure, image, videotape, videocassette, phonograph record,
or wire or other recording, or any written, printed, or recorded matter of any
such character which may or may not require mechanical or other means to be
transmitted into auditory, visual or sensory representations of such character,
or any article or instrument for obscene use , or purporting to be for obscene
use or purpose.� clearly the statute is broad and can be construed to encompass
both print materials as well as internet images.

3) a public library and its employees cannot be prosecuted under the florida
statute regarding the dissemination of harmful materials to minors, since the
statute is premised on the dissemination of harmful materials for monetary consideration

notably, public libraries can not be prosecuted under the florida statute,

fla. stat. § 847.012 (2001), regarding the prohibition of sale or other
distribution of harmful materials to persons under 18 years of age, because
the statute is premised upon the dissemination of harmful materials to minors,
for monetary consideration. fla. stat. 847.012 provides: �it is unlawful for
any person knowingly to sell, rent, or loan for monetary consideration to a
minor,� materials which are harmful to minors.

georgia � statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under the georgia statute,
o.c.g.a. § 16-12-103 (2001), regarding the dissemination to minors of material
harmful to minors, because public libraries are exempt from prosecution in accordance
with o.c.g.a. § 16-12-104.

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted under the georgia statute, o.c.g.a.
§ 16-12-103, regarding the dissemination to minors of materials harmful
to minors, because public libraries are clearly within the exemption set forth
in o.c.g.a. § 16-12-104, which states: �the provisions of code section
16-12-103 shall not apply to any public library operated by the state or any
of its political subdivisions nor to any library operated as a part of any school,
college, or university.� notably, the exemption does not offend the equal protection
clause of the federal constitution. american booksellers v. webb, 919 f.2d 1493
(11th cir. 1990), cert. denied, 500 u.s. 941, 111 s. ct. 2237, 114 l. ed. 2d
479 (1991). however, public libraries may be required by legislation to take
appropriate action to protect minors from exposure to materials that fall within
the definition of harmful to minors. 1995 op. att'y gen. no. u95-24.

hawaii -- statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the hawaii
statute hrs § 712-1215 (2001), regarding the promoting pornography for
minors, because the statute contains neither a public library exemption, nor
a defense which a public library could invoke. moreover, the statute applies
to the non-commercial promotion of print materials and internet images that
are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the hawaii statute
re: promoting pornography for minors, since it contains no exemption/defense
and applies to the non-commercial promotion of materials that are pornographic
for minors
a public library and its employees can be prosecuted under hawaii statute hrs
§ 712-1215, regarding promoting pornography for minors, because the statute
contains neither a public library exemption, nor a defense that a public library
could invoke. moreover, the statute applies to the non-commercial dissemination
of pornographic materials for minors. in accordance with hrs § 712-1215(1)(a),
�a person commits the offense of promoting pornography for minors if: knowing
its character and content, the person disseminates to a minor material that
is pornographic for minors.�

2) statute applies to promotion of print materials & internet images that
are pornographic for minors

the hawaii statute applies to both print materials and internet images. material
as defined in hrs § 712-1210(3) means �any printed matter, visual representation,
or sound recording, and includes but is not limited to books, magazines, motion
picture films, pamphlets, newspapers, pictures, photographs, drawings, sculptures,
and tape or wire recordings.� clearly, the statute applies to print materials.
by using the language �includes but is not limited to�, the legislature set
forth a very broad definition of �materials�, which can be construed to encompass
internet images.

idaho � employees of public libraries potentially liable under statute

conclusion: employees of public libraries, under certain circumstances, could
be prosecuted in idaho, under idaho code § 18-1515 (2000), for disseminating
material harmful to minors. although in accordance with idaho code § 18-1517(d),
an affirmative defense is available to public libraries and those acting in
their capacity as employees of a library, arguably library employees could not
invoke the defense under all circumstances. since idaho code § 18-1515
pertains to the non-commercial dissemination of print materials and internet
images that are harmful to minors, public library employees could be held liable
under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to employee acting outside employment capacity in disseminating
material harmful to minors
employees of a public library could be prosecuted for disseminating material
harmful to minors under idaho code § 18-1515. in accordance with idaho
code § 18-1517(1) (d): �(1) in any prosecution for disseminating material
harmful to minors, it is an affirmative defense that: (d) the defendant was
a bona fide school, college, university, museum or public library, or was acting
in his capacity as an employee of such an organization or a retail outlet affiliated
with and serving the educational purposes of such an organization.�

although the defense protects a bona fide library and public library employees
acting within their capacity, arguably the defense would not be available to
public library employees who act beyond their capacities as employees, without
authority. for example, where a public library employee knowingly permits a
minor to access an unfiltered internet screen, in contravention to the library�s
established internet use policy requiring minors to use filtered terminals,
and where the minor obtains material which is harmful to him, in a prosecution
under the statute, the library employee might not be able to invoke the aforementioned
defense.

2) statute applies to the non-commercial dissemination of materials not suitable
for minors
since idaho code § 18-1515 pertains to the non-commercial dissemination
of materials, which are harmful to minors, a public library employee could be
held liable under the statute, where s/he is unable to invoke the public library/capacity
defense. idaho code § 18-1515(1) states that a person is guilty of disseminating
material harmful to minors when: �he knowingly gives or makes available to a
minor or promotes or possesses with intent to promote to minors, or he knowingly
sells or loans to a minor for monetary consideration,� material which is harmful
to minors.

3) statute applies to both print materials and internet images

in idaho, a public library employee could be held liable for the dissemination
to minors of both print materials and internet images that are harmful to minors.
material, as defined in idaho code § 18-1514 means: �anything tangible
which is harmful to minors, whether derived through the medium of reading, observation
or sound.� clearly, the broad definition of materials can be construed to encompass
internet images in addition to print materials.

illinois � public libraries and their employees potentially liable
under statute where harmful material not furnished for scientific or educational
purpose

conclusion: public libraries and employees of public libraries, under certain
circumstances, could be held liable in illinois under 720 ilcs 5/11-21 (2001),

regarding the dissemination of harmful material to minors. although in accordance
with 720 ilcs 5/11-21(2001)(e)(1), an affirmative defense is available where
the defendant is a public library acting in aid of a legitimate scientific or
educational purpose, and is available where the act charged was committed in
aid of legitimate scientific or educational purpose, the applicability of the
defense to public libraries and their employees is fact specific, and public
libraries and their employees would not, under all factual scenarios, be permitted
to invoke the defense. since 720 ilcs 5/11-21 pertains to the non-commercial
dissemination of materials that are harmful to minors, public libraries and
their employees could be held liable under the statute, where they are unable
to invoke the defense.

analysis:

1) statute could apply to a public library and its employees where harmful
material is disseminated to minors, not in aid of a legitimate scientific or
educational purpose
a public library and library employees could be held liable in a prosecution
under s.c. 720 ilcs 5/11-21 regarding the dissemination of harmful material
to minors. in accordance with 720 ilcs 5/11-21(e)(1), �nothing in this section
shall prohibit any public library or any library operated by an accredited institution
of higher education from circulating harmful material to any person under 18
years of age, provided such circulation is in aid of a legitimate scientific
or educational purpose, and it shall be an affirmative defense in any prosecution
for a violation of this section that the act charged was committed in aid of
legitimate scientific or educational purposes.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries and
their employees is subject to varying fact-specific interpretations. however,
one can readily anticipate numerous factual scenarios where public libraries
and their employees disseminate harmful materials to minors, absent a legitimate
scientific or educational purpose. for example, where a library and/or library
employee knowingly permits a 7 year old with no educational justification such
as a research project, to access obscene materials on an unfiltered internet
screen, in contravention to the library�s established internet use policy requiring
minors to use filtered terminals, it is unlikely that a library and its employees
would be able to successfully argue that the dissemination was in aid of a legitimate
scientific or educational purpose.

2) statute applies to the non-commercial dissemination of materials harmful
to minors
since 720 ilcs 5/11-21 pertains to the non-commercial dissemination of materials
that are harmful to minors, public libraries and their employees could be held
liable under the statute, where they are unable to invoke the aforementioned
defense. § 720 ilcs 5/11-21 provides: �a person who, with knowledge that
a person is a child, that is a person under 18 years of age, or who fails to
exercise reasonable care in ascertaining the true age of a child, knowingly
distributes to or sends or causes to be sent to, or exhibits to, or offers to
distribute or exhibit any harmful material to a child, is guilty of a misdemeanor.�
§ 720 ilcs 5/11-21.

3) statute applies to both print materials and internet images

in illinois, a public library and its employees could be held liable for the
dissemination to minors of both print materials and internet images that are
harmful to minors. in accordance with § 720 ilcs 5/11-21(b)(2), �material�
means �any writing, picture, record or other representation or embodiment.�
clearly the statute is broad and can be construed to encompass both print materials
and internet images.

indiana� employees of public libraries potentially liable under statute
when acting outside the scope of their employment

conclusion: employees of public libraries, under certain circumstances, could
be prosecuted in indiana, under burns ind. code. ann. § 35-49-3-3 (2001),
regarding the provision of obscene matter and performances before minors. although
in accordance with burns ind. code ann. § 35-49-3-4, an affirmative defense
is available to public libraries and employees of public libraries acting within
their scope of employment, arguably library employees could not invoke the defense
under all circumstances. since burns ind. code. ann. § 35-49-3-3 pertains
to the non-commercial provision of obscene print materials and internet images,
public library employees could be held liable under the statute, where they
are unable to invoke the defense.

analysis:
1) statute could apply to employee acting outside scope of his employment in
disseminating material harmful to minors
employees of a public library could possibly be prosecuted for providing obscene
matter and performances before minors under burns ind. code. ann. § 35-49-3-3.
in accordance with burns ind. code ann. § 35-49-3-4 (2), it is an affirmative
defense to prosecution under the statute, � that the matter was disseminated
or displayed to or that the performance was performed before the recipient by
a bona fide school, museum, or public library that qualifies for certain property
tax exemptions under ic 6-1.1-10, or by an employee of such a school, museum,
or public library acting within the scope of his employment.�

although the defense protects a bona fide public library and public library
employees acting within the scope of their employment, the defense might possibly
be unavailable to public library employees who act beyond the scope of their
employment, without authority. for example, where a public library employee
knowingly permits a minor to access an unfiltered internet screen, in contravention
to the library�s established internet use policy requiring minors to use filtered
terminals, and where the minor obtains obscene material, in a prosecution under
the statute, the library employee might not be able to invoke the aforementioned
defense.

2) statute applies to the non-commercial provision of obscene materials to
minors
since burns ind. code. ann. § 35-49-3-3 pertains to the non-commercial
provision of obscene materials to minors, a public library employee could be
held liable under the statute, where s/he is unable to invoke the aforementioned
defense. burns ind. code. ann. § 35-49-3-3(a) states that a person is guilty
of providing obscene matter and performances before minors when he �knowingly
or intentionally: 1) disseminates matter to minors that is harmful to minors.�

3) statute applies to both print materials and internet images

in indiana, a public library employee could be held liable for the dissemination
to minors of both print materials and internet images that are harmful to minors.
�matter,� as defined in burns ind. code. ann. § 35-49-1-3 means: �(1) any
book, magazine, newspaper, or other printed or written material; (2) any picture,
drawing, photograph, motion picture, or other pictorial representation; (3)
any statue or other figure; (4) any recording, transcription, or mechanical,
chemical, or electrical reproduction; or (5) any other articles, equipment,
machines or materials.� clearly, the statute is broad and the definition of
�materials� can be construed to encompass internet images in addition to print
materials.

iowa � public libraries potentially liable under statute

conclusion:

public libraries, under certain circumstances, could be prosecuted in iowa,
under iowa code § 728.2 (2001) for the dissemination and exhibition of
obscene print materials and internet images to minors. although in accordance
with iowa code § 728.7, an exemption is available to public libraries,
where a child�s use of materials is appropriate for educational purposes, the
applicability of the exemption to public libraries is fact specific, and public
libraries would not, under all factual scenarios, be permitted to invoke the
exemption.

analysis:

1) statute could apply to public libraries for dissemination of obscene materials
to minors, where the child uses materials which are not appropriate for educational
purposes
a public library could be held liable in a prosecution under iowa code §
728.2, regarding the dissemination of obscene materials to minors. in accordance
with iowa code § 728.7, �nothing in this chapter prohibits the use of appropriate
material for educational purposes in any accredited school, or any public library,
or in any educational program in which the minor is participating. nothing in
this chapter prohibits the attendance of minors at an exhibition or display
of art works or the use of any materials in any public library.�

upon examination of the statutory language, it is evident that the language
of the exemption is vague. thus, in the absence of case law in this jurisdiction
interpreting the exemption, its applicability to public libraries is subject
to varying fact-specific interpretations. one can readily anticipate numerous
factual scenarios where children could access and use materials in a library,
which are obscene, and are not appropriate for educational purposes. for example,
where a 7 year old surfs the net at an unfiltered computer terminal in a public
library, in contravention to library policy, and obtains materials that are
obscene, and are not appropriate for educational purposes, it appears highly
unlikely that a library would be able to invoke the �educational purpose� exemption.

2) statute applies to the non-commercial dissemination of obscene materials
to minors
since iowa code § 728.2, pertains to the non-commercial dissemination of
obscene materials to minors, a public library could be held liable under the
statute where it is unable to invoke the �educational purpose� exemption. iowa
code § 728.2 states:
� any person, other than the parent or guardian of the minor, who knowingly
disseminates or exhibits obscene material to a minor, including the exhibition
of obscene material so that it can be observed by a minor on or off the premises
where it is displayed, is guilty of a public offense and shall upon conviction
be guilty of a serious misdemeanor.

3) statute applies to both print materials and internet images

in iowa, a public library could be held liable for the dissemination to minors
of obscene print materials and internet images. �material,� as defined in iowa
code § 728.1(3) means, �any book, magazine, newspaper or other printed
or written material or any picture, drawing, photograph, motion picture, or
other pictorial representation or any statue or other figure, or any recording,
transcription or mechanical, chemical or electrical reproduction or any other
articles, equipment, machines or materials. clearly, the statute is broad and
encompasses both print materials and internet images.

kansas � public libraries potentially liable under statute

conclusion: in kansas, public libraries, under some circumstances, could be
prosecuted for promoting obscenity as to minors in accordance with k.s.a. §
21-4301a. although under k.s.a. § 21-4301a(b)(3), an affirmative defense
is available to an officer, director, trustee or employee of a public library,
in cases where the obscene material was acquired by a public library and was
disseminated in accordance with regular library policies, arguably the defense
could not be invoked under all circumstances. since k.s.a. § 21-4301a pertains
to the non-commercial dissemination of print materials and internet images that
are harmful to minors, a public library could be held liable under the statute,
where it is unable to invoke the defense.

analysis:

1) affirmative defense available to public libraries

in kansas, public libraries, under some circumstances, could be prosecuted
for promoting obscenity as to minors in accordance with k.s.a. § 21-4301a.
under k.s.a. § 21-4301a(b)(3), it is an affirmative defense to any prosecution
under the section that: �the defendant is an officer, director, trustee or employee
of a public library and the allegedly obscene material was acquired by a public
library and was disseminated in accordance with regular library policies approved
by its governing body.

although the defense officers directors and employees of public libraries under
circumstances where the allegedly obscene material acquired and disseminated
by the library in accordance with regular library policies approved by its governing
body, arguably the defense would not available to those individuals in cases
where they have disseminated the material, in contravention to library policy.
for example, where a public library employee knowingly permits a minor to access
an unfiltered internet screen, in violation of the library�s established internet
use policy requiring minors to use filtered terminals, and where the minor obtains
material which is obscene, in a prosecution under the statute, the library employee
might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial promotion of obscene materials to
minors
since k.s.a. § 21-4301a pertains to the non-commercial promoting of obscenity
to minors, a public library could be held liable under the statute, where it
is unable to invoke the aforementioned defense. promoting obscenity, as set
forth in k.s.a. § 21-4301(a)(1) includes knowingly or recklessly �manufacturing,
issuing, selling, giving, providing, lending, mailing, delivering, transmitting,
publishing, distributing, circulating, disseminating, presenting, exhibiting
or advertising any obscene material or device�.�

3) statute applies to both print materials and internet images

in kansas, a public library could be held liable for the promotion of obscene
print materials and internet images to minors. material, as defined in k.s.a.
§ 21-4301(c)(2) means: �any tangible thing which is capable of being used
or adapted to arouse interest, whether through the medium of reading, observation,
sound other manner.� clearly, the broad definition of materials can be construed
to encompass internet images in addition to print materials.

kentucky � public libraries and their employees potentially liable under statute

conclusion:

public libraries and their employees, under certain circumstances, could be
held liable in kentucky, under k.r.s. § 531.030, regarding the distribution
of obscene matter to minors. although in accordance with k.r.s. § 531.070,
an exemption is available to persons having a bona fide scientific or educational
justification for distributing obscene matter to minors, the applicability of
the defense to public libraries and their employees is fact specific, and public
libraries and their employees would not, under all factual scenarios, be permitted
to invoke the exemption. since k.r.s. § 531.030.pertains to the non-commercial
distribution to minors of obscene print matter and internet images, a public
library and its employees could be held liable under the statute.

analysis:

1) statute could apply to public library and its employees where their distribution
of obscene matter to minors is without scientific, educational or other governmental
justification
a public library and its employees could be held liable in a prosecution under
the kentucky statute, k.r.s. § 531.030, regarding the distribution of obscene
matter to minors. in accordance with k.r.s. § 531.070, �the prohibitions
and penalties imposed in this chapter shall not extend to persons having a bona
fide scientific, educational, governmental, or other similar justification for
conduct which would, except for such justification, be criminal under this chapter.�

upon examination of the statutory language, it is evident that the language
of the exemption is vague. thus, in the absence of case law in this jurisdiction
interpreting the exemption, its applicability to public libraries and their
employees is subject to varying fact-specific interpretations. one can readily
anticipate numerous factual scenarios taking place in a public library, where
the distribution of obscene matter is made to a child, without educational or
scientific justification. for example, where a 7 year old surfs the net at an
unfiltered computer terminal in a public library, in contravention to library
policy, and obtains matter that is obscene, without educational justification
such as a research project, it appears highly unlikely that a library would
be able to invoke the �educational justification� exemption.

2) statute applies to the non-commercial distribution to minors of obscene
matter
since k.r.s. § 531.030.pertains to the non-commercial distribution to minors
of obscene matter, a public library and its employees could be held liable under
the statute, where they are unable to invoke the �educational justification�
exemption.. k.r.s. § 531.030 state �a person is guilty of distribution
of obscene material to minors when, knowing a person to be a minor, or having
possession of such facts that he should reasonably know that such person is
a minor, and with knowledge of the content and character of the material, he
knowingly: (a) sends or causes to be sent; or (b) exhibits; or
(c) distributes, or offers to distribute, obscene material to a minor.�

3) statute applies to both print materials and internet images

in kentucky, a public library and its employees could be held liable for the
dissemination to minors of obscene print materials and internet images. as defined
in krs § 531.010(2), "matter" means �any book, magazine, newspaper,
or other printed or written material or any picture, drawing, photograph, motion
picture, or other pictorial representation or any statue or other figure, or
any recording transcription or mechanical, chemical or electrical reproduction
or any other articles, equipment, machines, or materials.� clearly, the statute
is broad and applies to print materials and internet images.

louisiana - statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under
the louisiana statute, la. r.s. 14:91.11 (2001), regarding the dissemination
to minors of harmful materials to minors, because the statute applies only to
the dissemination to minors of materials harmful to minors, at newsstands or
other commercial establishments.

analysis:

1) statute applies to the dissemination to minors of materials harmful to minors,

at commercial establishments

louisiana statute, la. r.s. 14:91.11, regarding the dissemination to minors
of material harmful to minors, does not apply to public libraries, because the
statute applies only to the dissemination of such materials at commercial establishments.
la. r.s. 14:91.11(1) states: �(1) the unlawful sale, exhibition, rental, leasing,
or distribution of material harmful to minors is the intentional sale, allocation,
distribution, advertisement, dissemination, exhibition, or display of material
harmful to minors, to any unmarried person under the age of seventeen years,
or the possession of material harmful to minors with the intent to sell, allocate,
advertise, disseminate, exhibit, or display such material to any unmarried person
under the age of seventeen years, at a newsstand or any other commercial establishment
which is open to persons under the age of seventeen years.�

note, however, that under la. r.s. 14.92, permitting any child under the age
of 17 to �visit any place where sexually indecent material, of any nature, is�displayed
or exhibited� constitutes the crime of contributing to the delinquency of juveniles.

maine � public libraries potentially liable under statute where dissemination
of materials is not for educational purposes

conclusion: under certain circumstances, public libraries could be prosecuted
under maine�s statute,17 m.r.s. § 2911(2) (2000), regarding the dissemination
of obscene matters to minors. although in accordance with 17 m.r.s. § 2911(2)(a),
the statute does not apply to a library�s noncommercial distribution or exhibition
of obscene material to minors for any purely educational purpose, an examination
of the exempting language reveals that it it�s application to libraries is fact
specific, and thus, public libraries would not be immune from prosecution under
all circumstances.

analysis:

1) statute could apply to library where dissemination of obscene matter to
minors is not for purely educational purposes

a public library could be prosecuted under the maine statute,17 m.r.s. §
2911(2), regarding the dissemination of obscene matter to minors. in accordance
with 17 m.r.s. § 2911(2)(a), �this section shall not apply to any noncommercial
distribution or exhibition for purely educational purposes by any library, art
gallery, museum, public school, private school or institution of learning, nor
to any commercial distribution or exhibition by any art gallery or museum.�

upon examination of the exempting statutory language, it is evident that the
language is ambiguous. thus, in the absence of case law in this jurisdiction
interpreting the exempting language, its applicability to public libraries is
subject to varying fact-specific interpretations. on one hand, public libraries
might contend that the exempting language should be invoked to protect all disseminations
of obscene materials to minors, since ideally, the purpose of public libraries
and their distributions and exhibitions is educational. however, one can imagine
a factual scenario, with regard to internet materials for example, in which
a library disseminates harmful materials to a minor, where there is no educational
purpose for the distribution of the material to the minor. in such a scenario,
a library might not fall within the ambit of the exempting language, and could
be held liable for the dissemination of the materials to the minor.

2) statute applies to the non-commercial dissemination of obscene matter to
minors
since 17 m.r.s. § 2911(2), pertains to the non-commercial dissemination
of obscene matter to minors, a public library could be held liable under the
statute, where its dissemination can not be justified as having an �educational
purpose.� 17 m.r.s. § 2911(2), states that: �a person is guilty of disseminating
obscene matter to a minor if he knowingly distributes, or exhibits or offers
to distribute or exhibit to a minor, any obscene matter declared obscene.�

3) statute applies to both print materials and internet images

in maine, a public library could be held liable for the dissemination to minors
of both print matter and internet images that are obscene. matter, as defined
in 17 m.r.s. § 2911(1)(c), " means any printed or written material,
any picture, photograph, motion picture or other visual representation,� that
is obscene. clearly, the definition of �matter� is broad and can be construed
to apply to both print materials and internet images.

maryland � public libraries and their employees potentially liable under statute

conclusion: public libraries and their employees of public libraries, under
certain circumstances, could be held liable in maryland, under md. ann. code
art. 27, § 419 (2001), for their dissemination of obscene materials to
minors. although in accordance with md. ann. code art. 27, § 423, an exemption
is available to persons having educational justification for possessing or distributing
obscene matter, the applicability of the defense to public libraries and their
employees is fact specific, and public libraries would not, under all factual
scenarios, be permitted to invoke the exemption.

since md. ann. code art. 27, § 419 pertains to the non-commercial dissemination
of obscene print materials and internet images, public libraries and their employees
could be held liable under the statute, where they are unable to invoke the
exemption.

analysis:
1) statute could apply to public libraries and their employees where their dissemination
of obscene material is to minors who have no scientific or educational justification
for possessing the material
public libraries and their employees could be held liable in a prosecution under
md. ann. code art. 27, § 419, regarding the dissemination of obscene materials
to minors. in accordance with md. ann. code art. 27, § 423(a), �the prohibitions
and penalties imposed in this subtitle shall not extend to persons having bona
fide scientific, educational, governmental, artistic, news, or other similar
justification for possessing or distributing such matter, or to distributions
thereof pursuant to such justification.�

upon examination of the statutory language, it is evident that the language
of the exemption is vague. thus, in the absence of case law in this jurisdiction
interpreting the exemption, its applicability to public libraries and their
employees is subject to varying fact-specific interpretations. one can readily
anticipate numerous factual scenarios where children could access obscene materials
in a library, for which they have no educational or other special justification
for possessing . for example, where a 7 year old surfs the net at an unfiltered
computer terminal in a public library, in contravention to library policy, and
obtains materials which is obscene, without educational justification such as
a research project, it appears highly unlikely that a library or its employees
would be able to invoke the �educational justification� exemption.

2) statute applies to the non-commercial dissemination to minors of obscene
materials
since md. ann. code art. 27, § 419 pertains to the non-commercial dissemination
of obscene materials to minors, public libraries and their employees could be
held liable under the statute, where they are unable to invoke the �educational
justification� exemption. md. ann. code art. 27, § 419(2) states: �a person
may not willfully or knowingly display or exhibit to any person under the age
of 18 years any still picture, photograph, book, pocket book, pamphlet, magazine,
videodisc, videotape, film, computer disc, or recorded telephone messages the
cover or content of which is principally made up of obscene descriptions or
depictions of illicit sex, or which consists of obscene pictures of nude or
partially denuded figures.�

3) statute applies to both print materials and internet images

in maryland, public libraries and their employees could be held liable for
the dissemination to minors of obscene print materials and internet images.
under md. ann. code art. 27, § 419(2), �a person may not willfully or knowingly
display or exhibit to any person under the age of 18 years any still picture,
photograph, book, pamphlet, magazine, video disc, videotape, film, computer
disk, or recorded telephone message the cover or content of which is principally
made up of obscene descriptions of illicit sex, or which consists of obscene
pictures of nude or partially denuded figures. the term �still picture� would
appear to encompass static images displayed on a computer screen.

massachussetts- statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under
the massachusetts statute, mass. ann. laws ch. 272, § 28 (2001) regarding
the dissemination to minors of harmful materials, pursuant to a defense that
specifically names public libraries and their employees among those who cannot
be prosecuted.

analysis:

1) statute contains a defense for public libraries and their employees

a public library, and its employees can not be prosecuted under the massachusetts
statute, mass. ann. laws ch. 272, § 28, regarding the dissemination to
minors of harmful materials, because the statute contains a defense which states:
�it shall be a defense in any prosecution under this section that the defendant
was in a parental or guardianship relationship with the minor. it shall also
be a defense in any prosecution under this section if the evidence proves that
the defendant was a bona fide school, museum or library, or was acting in the
course of his employment as an employee of such organization or of a retail
outlet affiliated with and serving the educational purpose of such organization.�

michigan - public library employees not liable under statute

conclusion: employees of public libraries cannot be found liable in michigan,
under mcls § 722.675 (2001), for disseminating sexually explicit internet
or print matter to minors, because they are clearly within the exception set
forth in mcls § 722.676.

analysis:
1) statute does not apply to public library employees
employees of a public library cannot be prosecuted for disseminating sexually
explicit internet or print matter to minors. in accordance with mcls §
722.676, persons exempted from liability include: �(d) a librarian employed
by a library of a public or private elementary or secondary school that complies
with the revised school code, 1976 pa 451, mcl 380.1 to 380.1852, or employed
by a public library, who disseminates sexually explicit matter in the course
of that person's employment.�

minnesota - statute does not apply to public libraries

conclusion: public libraries and their employees cannot be prosecuted under
the minnesota statute, minn. stat. § 617.295 (2000), regarding the dissemination
to minors of harmful materials, pursuant to an exemption that specifically names
public libraries and their employees among those who cannot be prosecuted. moreover,
the statute pertains to the commercial dissemination of materials harmful to
minors.

analysis:

1) statute contains an exemption for public libraries and their employees and
statute pertains to the commercial dissemination of materials harmful to minors

public libraries and their employees can not be prosecuted under the minnesota
statute, minn. stat. § 617.295, regarding the dissemination to minors of
harmful materials, because the statute contains an exemption as set forth in
minn. stat. § 617.295(a) for: �recognized and established schools, churches,
museums, medical clinics and physicians, hospitals, public libraries, governmental
agencies or quasi governmental sponsored organizations, and persons acting in
their capacity as employees or agents of such organization.�

additionally, minn. stat. § 617.295 is premised upon the commercial dissemination
of harmful materials to minors. minn. stat. § 617.295 provides: �it is
unlawful for any person knowingly to sell or loan for monetary consideration
to a minor� any harmful material. public libraries are not implicated in the
statute, because they do not exchange their materials for monetary consideration.

mississippi � statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the
mississippi statute, miss. code ann. §97-5-27 (2001), regarding the dissemination
of sexually oriented material to persons under eighteen years of age, because
the statute contains neither a public library exemption, nor a defense that
a public library could invoke. furthermore, the statute applies to the non-commercial
dissemination to minors, of sexually oriented print material and internet images.

analysis:

1) public libraries and their employees can be prosecuted under miss. code

ann. §97-5-27, which contains no exemption/defense and applies to the
non-commercial dissemination of sexually oriented materials to minors

a public library and its employees can be prosecuted under the mississippi
statute, miss. code ann. §97-5-27, regarding the dissemination of sexually
oriented material to persons under eighteen years of age, because the statute
contains neither a public library exemption nor a defense that a public library
could invoke. moreover, the statute applies to the non-commercial dissemination
of sexually oriented materials to minors. in accordance with miss. code ann.
§97-5-27(1), a person disseminates sexually oriented material within the
meaning of this section if he: �(c) exhibits, presents, rents, sells, delivers
or provides, or offers or agrees to exhibit, present, rent or to provide�� any
sexually oriented material.

in mississippi, a public library can be held liable for the dissemination of
sexually oriented print materials and internet images. in accordance with miss.
code ann. §97-5-27(1)(c), one can be prosecuted under the statute for disseminating
�any sexually oriented still or motion picture, film, filmstrip or projection
slide, or sound recording, sound tape or sound track or any matter or material
of whatever form which is a representation, embodiment, performance or publication
that is sexually oriented.� [1] clearly, the statute applies to print materials.
the language �any matter or material of whatever form which is a representation�
sets forth a very broad definition of materials that can be construed to encompass
internet images.

missouri --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the missouri
statute § 573.040 r.s.mo. (2000), regarding furnishing pornographic materials
to minors, because the statute contains neither a public library exemption,
nor a defense which a public library could invoke. moreover, the statute applies
to the non-commercial furnishing of print materials and internet images that
are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the missouri statute
regarding furnishing pornographic materials to minors, since it contains no
exemption or defense and applies to the non-commercial furnishing of materials
a public library and its employees can be prosecuted under missouri statute,
§ 573.040 r.s.mo, regarding furnishing pornographic materials to minors,
because the statute contains neither a public library exemption, nor a defense
that a public library could invoke. moreover, the statute applies to the non-commercial
furnishing of pornographic materials to minors. in accordance with § 573.040(1)
r.s.mo, �a person commits the crime of furnishing pornographic material to minors
if, knowing its content and character, he or she: �(1) furnishes any material
pornographic for minors, knowing that the person to whom it is furnished is
a minor or acting in reckless disregard of the likelihood that such person is
a minor.� in accordance with § 573.010(5) r.s.mo, to furnish means: �to
issue, sell, give, provide, lend, mail, deliver, transfer, circulate, disseminate,
present, exhibit or otherwise provide.�

in missouri, a public library and its employees can be held liable for the
furnishing to minors of pornographic print materials and internet images. material
as defined in §573.010(6) means: �anything printed or written, or any picture,
drawing, photograph, motion picture film, videotape or videotape production,
or pictorial representation, or any recording or transcription, or any mechanical,
chemical, or electrical reproduction, or stored computer data, or anything which
is or may be used as a means of communication. "material" includes
undeveloped photographs, molds, printing plates, stored computer data and other
latent representational objects.� clearly by the plain language of the statute,
the statute is broad, and includes both print materials and internet images.

montana �- statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under
montana statute, mont. code anno. § 45-8-206 (2001), regarding the dissemination
of obscene material to minors, because the statute is premised upon the commercial
dissemination of obscene materials to minors.

analysis:

1) statute applies to the commercial dissemination of obscene materials

mont. code anno. § 45-8-206 (2001), regarding obscenity as to minors,
does not apply to public libraries, because the statute is premised upon the
commercial dissemination of obscenity to minors. mont. code anno. § 45-8-206
provides: �a person having custody, control, or supervision of any commercial
establishment or newsstand may not knowingly or purposely,� disseminate obscene
materials to minors. public libraries are not implicated in the statute, because
they do not exchange their materials for monetary consideration.

nebraska � statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under
r.r.s. neb. § 28-808, regarding the sale to a minor of obscene literature
and material, because the statute is premised upon the commercial dissemination
of obscenity to minors.

analysis:
1) statute applies to the commercial dissemination of obscenity to minors
r.r.s. neb. § 28-808(1), regarding the sale to a minor of obscene literature
and materials does not apply to public libraries because the statute is premised
upon the commercial dissemination of obscenity to minors. r.r.s. neb. §
28-808(1) provides: �it shall be unlawful for a person to knowingly sell, deliver,
distribute, display for sale, or provide to a minor knowingly to possess with
intent to sell, deliver, distribute, display for sale, or provide to a minor
or knowingly to possess with intent to sell, deliver, distribute, display for
sale, or provide to a minor.� public libraries are not implicated in the statute,
because they are not commercial entities that exchange their materials for monetary
consideration.

nevada� statute does not apply to public libraries but employees of public
libraries are potentially liable under statute

conclusion: public libraries cannot be prosecuted under the nevada statute,

nev. rev. stat. ann. § 201.265 (2001), regarding the dissemination of
harmful print materials and internet images to minors, because public libraries
are exempt from prosecution in accordance with nev. rev. stat. ann. § 201.2655(1).
notably however, employees of public libraries, under certain circumstances,
could be held liable under nev. rev. stat. ann. § 201.265, for disseminating
harmful materials to minors. although in accordance with nev. rev. stat. ann.
§ 201.2655(2), employees of libraries who are acting within their scope
of employment are exempt from liability, arguably library employees could not
invoke the exemption under all circumstances. moreover, since nev. rev. stat.
ann. § 201.265, pertains to the non-commercial dissemination of internet
images and print materials that are harmful to minors, images, public library
employees could be prosecuted under the statute, where they are unable to invoke
the exemption.

analysis:

1) statute could apply to a public library employee who disseminates harmful
materials to minors where employee acts outside the scope of his employment

public libraries can not be prosecuted under nev. rev. stat. ann. § 201.265,
regarding the dissemination of harmful materials to minors, because public libraries
are clearly within the exemption set forth in nev. rev. stat. ann. § 201.2655(1),
which creates an exemption for: �a university, community college, school, museum
or library which is operated by or which is under the direct control of this
state or a political subdivision of this state.�

however, employees of a public library could be prosecuted for disseminating
harmful materials to minors. in accordance with nev. rev. stat. ann. §
201.2655(2), an exemption exists for � an employee or independent contractor
of an institution listed in subsection 1, if the employee or independent contractor
is acting within the scope of his employment or contractual relationship.� although
the aforementioned exemption protects library employees acting within their
scope of employment, the exemption would not be available to library employees
who act beyond their scope of employment in their disseminating of indecent
material to minors. for example, where a public library employee, without the
requisite authority, and in contravention to the library�s established internet
use policy which requires minors to use filtered terminals, knowingly permits
a minor to access an unfiltered internet screen, whereby the minor obtains internet
materials which are harmful to minors, in a prosecution under the statute, it
is questionable whether a public library employee would be able to invoke the
exemption.

2) statute applies to non-commercial dissemination of internet images and print
materials. since nev. rev. stat. ann. § 201.265 pertains to the non-commercial
dissemination of internet images and print materials that are harmful to minors,
public library employees could be prosecuted under the statute, where they are
unable to invoke the exemption. the statute states: �a person is guilty of a
misdemeanor if the person knowingly: 1) distributes or causes to be distributed
to a minor material that is harmful to minors��

3) statute applies to both print materials and internet images

in nevada, a public library could be held liable for the dissemination to minors
of both print materials and internet images that are harmful to minors. the
definition of �material� as set forth in nev. rev. stat. ann. § 201.258,
includes: �1. a book, pamphlet, magazine, newspaper, printed advertising or
other printed or written material; 2. a motion picture, photograph, picture,
drawing, statue, sculpture or other visual representation or image; or 3. a
transcription, recording or live or recorded telephone message.� clearly, the
broad definition of material can be construed to encompass both print materials
and internet images.

new hampshire --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the new
hampshire statute rsa 571-b:2 (2000), regarding the dissemination to minors
of materials that are harmful to minors, because the statute contains neither
a public library exemption, nor a defense which a public library could invoke.
moreover, the statute applies to the non-commercial promotion of print materials
and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the new hampshire
statute regarding the dissemination to minors of materials harmful to minors,
since it contains no exemption or defense and applies to the non-commercial
dissemination of materials
a public library and its employees can be prosecuted under new hampshire statute
rsa 571-b:2, regarding the dissemination to minors of materials harmful to minors,
because the statute contains neither a public library exemption, nor a defense
that a public library could invoke. additionally, the legislature in drafting
the statute, clearly meant to hold all persons liable for their dissemination
of harmful materials to minors. the legislature stated: "it is the express
intent of the general court that rsa 571-b relating to exposing

minors to harmful materials and rsa 650 relating to obscene matter shall be
enforced to apply only to those persons actually responsible for the production
and dissemination of pornographic or obscene materials." legislative intent.
1976, 46:6, eff. june 1, 1976. moreover, the statute applies to the non-commercial
dissemination of pornographic materials for minors. in accordance with rsa 571-b:2,
�it shall be unlawful for any person knowingly to give, sell, loan or otherwise
provide with or without monetary consideration, to a minor,� materials that
are harmful to minors.

2) statute applies to dissemination to minors of print materials & internet
images that are harmful to minors

in new hampshire, a public library and its employees can be held liable for
the dissemination of print materials and internet images that are harmful for
minors. material as referenced in rsa 571-b:2, includes: �(a) any picture, photograph,
drawing, sculpture, motion picture film or similar visual representation or
image of a person or portion of the human body which depicts sexual conduct
and which is harmful to minors, or (b) any book, pamphlet, magazine, printed
matter, however reproduced, or sound recording which contains any matter enumerated
in rsa 571-b:2, (a), or explicit and detailed verbal descriptions or narrative
accounts of sexual conduct and which, taken as a whole, is harmful to minors.�
evidently the statute is broad and can be construed to include both print materials
and internet images.

new jersey - statute applies to public libraries

conclusion: a public library and its employees can be held liable under the
new jersey statute, n.j. stat. § 2c:34-3(b) (2001), regarding promoting
obscene material to minors, because the statute contains neither a public library
exemption, nor a defense which a public library could invoke. moreover, the
statute applies to the non-commercial promotion of print materials and internet
images that are obscene to minors.

analysis
1) a public library and its employees can be held liable under the statute,
since statute contains no exemption or defense that a public library could invoke,
and since statute applies to non-commercial promotion of materials that are
obscene to minors
a public library and its employees can be prosecuted under n.j. stat.§
2c:34-3(b), regarding the promotion of obscene materials to minors, because
the statute contains neither a public library exemption, nor a defense that
a public library could invoke. moreover, the statute applies to the non-commercial
dissemination of obscene materials to minors. in accordance with n.j. stat.§
2c:34-3(b)(1), �a person who knowingly sells, distributes, rents or exhibits
to a person under 18 years of age obscene material is guilty of a crime of the
third degree.�

2) statute applies to promotion of print materials & internet images that
are obscene to minors

in new jersey, a public library and its employees can be held liable for the
promotion of print materials and internet images that are obscene to minors.
�obscene material� as defined in n.j. stat.§ 2c:34-3(a)(1), means �any
description, narrative account, display, depiction of a specified anatomical
area or specified sexual activity contained in, or consisting of, a picture
or other representation, publication, sound recording, live performance or film,
which by means of posing, composition, format or animated sensual details, emits
sensuality with sufficient impart to concentrate prurient interest on the area
or activity.� clearly, the definition of �obscene materials� is broad and the
statute can be construed to encompass both print materials and internet images.

new mexico - employees of public libraries potentially liable under statute,
regarding print material / public libraries and their employees not liable regarding
internet images

conclusion: employees of public libraries, under certain circumstances, could
be prosecuted in new mexico under n.m. stat. ann. § 30-37-2 (2001), regarding

dissemination of print materials that are harmful to minors. although in accordance
with n.m. stat. ann. § 30-37-5 (2001), an exclusion/defense exists for
public libraries and those acting in their capacity as employees of a public
library, arguably library employees could not invoke the defense could not be
invoked under all circumstances. since n.m. stat. ann. § 30-37-2 pertains
to the non-commercial dissemination of print materials that are harmful to minors,
public library employees could be held liable under the statute, where they
are unable to invoke the defense. public libraries and their employees are not
liable under the statute with respect to internet images.

analysis: re: employees of public libraries potentially liable under statute,
regarding print materials
1) statute could apply to employee acting outside employment capacity in disseminating
harmful print materials to minors
employees of a public library could be prosecuted for disseminating harmful
print materials to minors. in accordance with n.m. stat. ann. § 30-37-5(d),
no person shall be guilty of violating the provisions of the statute where:
�such person is a bona fide school, museum or public library, or is acting in
his capacity as an employee of such organization, or as a retail outlet affiliated
with and serving the educational purposes of such organization.�

although the defense protects a bona fide library and public library employees
acting within their capacity, arguably the defense would not be available to
public library employees who act beyond their capacities as employees, without
authority. for example, where a public library employee knowingly permits a
minor to access an obscene book, in contravention to the library�s established
policy restricting such a dissemination to minors, in a prosecution under the
statute, the library employee might not be able to invoke the aforementioned
defense.

2) statute applies to the non-commercial dissemination of materials not suitable
for minors
since n.m. stat. ann. § 30-37-2 pertains to the non-commercial dissemination
of print materials that are harmful to minors, public library employees could
be held liable under the statute, where they are unable to invoke the defense.
n.m. stat. ann. § 30-37-2 states: �it is unlawful for a person to knowingly
sell, deliver, distribute, display for sale or provide to a minor, or knowingly
to possess with intent to sell, deliver, distribute, display for sale or provide
to a minor,� harmful print material, which includes books and pictures.

3) statute applies to print materials

public library employees could be held liable for the dissemination to minors
of print materials that are harmful to minors. n.m. stat. ann. § 30-37-2
references books and pictures only. the statute makes it unlawful for persons
to knowingly disseminate �a. any picture, photograph, drawing, sculpture, motion
picture film or similar visual representation or image of a person or portion
of the human body, or any replica, article or device having the appearance of
either male or female genitals which depicts nudity, sexual conduct, sexual
excitement or sado-masochistic abuse and which is harmful to minors; or b. any
book, pamphlet, magazine, printed matter however produced or sound recording
which contains any matter enumerated in subsection a of this section or explicit
and detailed verbal descriptions or narrative accounts of sexual excitement,
sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful
to minors.� the statute regarding the dissemination of material that is harmful
to a minor by computer and child luring is covered in n.m. stat. ann. §
30-37-3.2.

new york� public libraries and their employees potentially liable under statute

conclusion:

public libraries and their employees could, under certain circumstances, be
held liable in new york under ny cls penal §235.22, regarding the dissemination
of indecent materials to minors in the first degree. a person is guilty of disseminating
indecent

material to minors in the first degree when: (1.) knowing the character of
the communication which, in whole or part, depicts actual or simulated nudity,
sexual conduct or sado-masochistic abuse, and which is harmful to minors, he
intentionally uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one computer
to another, to initiate or engage in such communication with a person who is
a minor;�

analysis:

public libraries and their employees could, under certain circumstances, be
held liable in new york under ny cls penal §235.22, regarding the dissemination
of indecent materials to minors in the first degree.

in accordance with ny cls penal §235.24(1), �no person shall be held to
have violated such provisions solely for providing access or connection to or
from a facility, system, or network not under that person's control, including
transmission, downloading, intermediate storage, access software, or other related
capabilities that are incidental to providing such access or connection that
do not include the creation of the content of the communication. an initial
reading of this section suggests public libraries are exempt form prosecution
regarding the dissemination of indecent materials to minors in the first degree.

however, in accordance with §235.24(13) �no employer shall be held liable
under such provisions for the actions of an employee or agent unless the employee's
or agent's conduct is within the scope of his employment or agency and the employer
having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly
disregards such conduct.�

in the absence of case law in this jurisdiction interpreting the defense statute,
its applicability to public libraries is subject to varying fact-specific interpretations.
however, one can readily anticipate numerous factual scenarios where a librarian
acting within the scope of employment and with the authorization of his/her
employer library, acts in contravention to library policy, permitting individuals
to engage in communication with a minor that is harmful to minors. in such situations,
where the employer library ratified the employee�s conduct, the library and
the library employee could be held liable under the statute for disseminating
indecent materials to minors in the first degree.

2) public libraries could be held liable for dissemination of indecent materials
via the internet.

in the new york a public library could be held liable for the dissemination
to minors of harmful internet images in accordance with that ny cls penal section
235.22, regarding disseminating indecent material to minors in the first decree
via computer. notably, the new york statute regarding disseminating indecent
print materials to minors, as set forth in ny cls penal section 235.21, regarding
the disseminating of indecent material to minors in the second degree is premised
on the dissemination of materials for monetary consideration. since public libraries
do not exchange their materials for monetary consideration, the statute regarding
the dissemination of indecent print materials would not apply to hold libraries
liable.

north carolina � statute potentially applies to public libraries and their
employees acting outside the scope of their legitimate duties

conclusion: public libraries and their employees, under certain circumstances,
could be held liable in north carolina, for disseminating harmful materials
to minors, under nc st § 14-190.15(a). although in a prosecution under
the statute, public libraries and employees have available to them an affirmative
defense in accordance with nc st § 14-190.15(c)(2), which provides a defense
to a public library carrying out its legitimate function, or an employee carrying
out a legitimate duty of his employment, the applicability of the defense to
public libraries and their employees is fact specific, and public libraries
and their employees would not, under all factual scenarios, be permitted to
invoke the defense. moreover, since nc st § 14-190.15(a) pertains to the
non-commercial dissemination of print materials and internet images that are
harmful to minors, a public library and its employees could be held liable under
the statute.

analysis:

1) statute could apply to public libraries that are not carrying out their
legitimate functions, and their employees where their dissemination is not within
a legitimate duty of their employment
public libraries and their employees could be prosecuted for disseminating harmful
materials to minors under nc st § 14-190.15(a). in accordance with nc st
§ 14-190.15(c)(2), it is an affirmative defense to prosecution under the
statute, where, �the defendant was a school, church, museum, public library,
governmental agency, medical clinic, or hospital carrying out its legitimate
function; or an employee or agent of such an organization acting in that capacity
and carrying out a legitimate duty of his employment.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries and
their employees is subject to varying fact-specific interpretations. arguably
the defense would not be available to public libraries and employees who act
without legitimate justification in disseminating harmful material to minors.
for example, where a public library/ employee knowingly permits a minor to access
an unfiltered internet screen, in contravention to the library�s established
internet use policy requiring minors to use filtered terminals, and where the
minor has no legitimate purpose for obtaining the harmful material, in a prosecution
under the statute, it is possible that the public library/employee would be
unable to establish that he was carrying out a legitimate function of his employment.

2) statute applies to the non-commercial dissemination of materials not suitable
for minors
since nc st § 14-190.15(a) pertains to the non-commercial dissemination
of print materials and internet images that are harmful to minors, a public
library and its employees could be held liable under the statute. nc st §
14-190.15(a) states: �a person commits the offense of disseminating harmful
material to minors, if, with or without consideration and knowing the character
or content of the material, he: (1) sells, furnishes, presents, or distributes
to a minor material that is harmful to minors; or (2) allows a minor to review
or peruse material that is harmful to minors.�

3) statute applies to both print materials and internet images

in north carolina, a public library and its employees could be held liable
for the dissemination to minors of both print materials and internet images
that are harmful to minors. material, as defined in nc st § 14-190.13(2)
means �pictures, drawings, video recordings, films or other visual depictions
or representations but not material consisting entirely of written words.� clearly,
the statute is broad and can be construed to encompass both print materials
and internet images.

north dakota -- statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under north
dakota�s statute, n.d. cent. code, § 12.1-27.1-03 (2001), regarding promoting
obscenity to minors, because the statute contains neither a public library exemption,
nor a defense which a public library could invoke. moreover, the statute applies
to the non-commercial promotion of obscene print materials and internet images
to minors.

analysis
1) a public library and its employees can be prosecuted under the north dakota
statute regarding promoting obscene materials to minors, since the statute contains
no exemption or defense and applies to the non-commercial promotion of obscene
materials to minors
a public library and its employees can be prosecuted under n.d. cent. code,
§ 12.1-27.1-03, regarding promoting obscenity to minors, because the statute
contains neither a public library exemption, nor a defense that a public library
could invoke. moreover, the statute applies to the non-commercial promotion
of obscene materials to minors. in accordance with n.d. cent. code, § 12.1-27.1-03,
� it is a class c felony for a person, knowing of its character, to recklessly
promote to a minor any material or performance which is harmful to minors, or
to admit a minor to premises where a performance harmful to minors is exhibited
or takes place.� as set forth in n.d. cent. code, § 12.1-27.1-02(1) �promote
means to produce, direct, manufacture, issue, sell, lend, mail, publish, distribute,
exhibit, or advertise.�

in north dakota, a public library can be held liable for the promotion of obscene
print materials and internet images. although material is not specifically defined
in the statute, n.d. cent. code § 12.1-27.1-03, makes it a crime to promote:
�any material or performance which is harmful to minors.� in the absence of
language limiting �material� to print matter, and since the statute states that
it is an offense to promote �any material�, the statute can be construed to
apply to both print materials and internet images.

ohio --- employees of public libraries potentially liable under statute where
material not presented for educational purpose

conclusion:

employees of public libraries could, under certain circumstances, be held liable
in ohio under orc ann. § 2907.31, regarding the dissemination to minors
of print materials and internet images that are harmful to minors. although
in accordance with orc ann. § 2907.31(c)(1), an affirmative defense is
available where the matter was furnished or presented for a bona fide medical,
scientific, educational, or other proper purpose, by a librarian, the applicability
of the defense to public library employees is fact specific, and librarians
would not, under all factual scenarios, be permitted to invoke the defense.
. since orc ann. § 2907.31, pertains to the non-commercial dissemination
of materials that are harmful to minors, public library employees could be held
liable under the statute, where they are unable to invoke the �educational justification�
defense.

analysis:

1) statute could apply to public library employees where their dissemination
of harmful materials to minors is not for any scientific, educational or other
special purpose

in a prosecution for disseminating materials harmful to minors, under orc ann.
§ 2907.31, librarians have available to them an affirmative defense in
accordance with orc ann. § 2907.31(c)(1), which provides: �it is an affirmative
defense to a charge under this section, involving material or a performance
that is obscene or harmful to juveniles, that the material or performance was
furnished or presented for a bona fide medical, scientific, educational, governmental,
judicial, or other proper purpose, by a physician, psychologist, scientist,
teacher, librarian, clergyman, prosecutor, judge, or other proper person.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries is subject
to varying fact-specific interpretations. one can readily anticipate numerous
factual scenarios where librarians enable children to access materials harmful
to minors, for which the children have no

educational or other special justification for possessing. for example, where
a librarian knowingly allows a 7 year old, without educational justification
such as a research project, to surf the net at an unfiltered computer terminal
in a public library, in contravention to library policy, and where the minor
obtains materials which are harmful to minors, it appears unlikely that a librarian
would be able to invoke the �educational� defense.

2) statute applies to the non-commercial dissemination of materials harmful
to minors
since orc ann. § 2907.31, pertains to the non-commercial dissemination
of materials that are harmful to minors, public library employees could be held
liable under the statute, where they are unable to invoke the aforementioned
defense. orc ann. § 2907.31, states: �no person, with knowledge of its
character or content shall recklessly�(1) sell, deliver, furnish, disseminate,
provide, exhibit, rent, or present to a juvenile any material or performance
that is obscene or harmful to juveniles��

3) statute applies to both print materials and internet images

in ohio, public library employees could be held liable for the dissemination
to minors of both print materials and internet images that are harmful to minors.
material, as defined in orc ann. § 2907.01(j) means: �any book, magazine,
newspaper, pamphlet, poster, print, picture, figure, image, description, motion
picture film, phonographic record, or tape, or other tangible thing capable
of arousing interest through sight, sound, or touch.� clearly, the statute is
broad and can be construed to encompass both print materials and internet images
that are harmful to minors.

oklahoma --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the oklahoma
statute, 21 okl. st. § 1040.76, regarding the dissemination to minors of
materials that are harmful to minors, because the statute contains neither a
public library exemption, nor a defense that a public library could invoke.
moreover, the statute applies to the non-commercial promotion of print materials
and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the oklahoma statute
regarding the dissemination to minors of materials harmful to minors, since
the statute contains no exemption or defense and applies to the non-commercial
dissemination of materials
a public library and its employees can be prosecuted under 21 okl. st. §
1040.76, regarding the dissemination to minors of materials harmful to minors,
because the statute contains neither a public library exemption, nor a defense
that a public library could invoke. moreover, the statute applies to the non-commercial
dissemination of pornographic materials for minors. in accordance with 21 okl.
st. § 1040.76, �no person, including but not limited to any persons having
custody, control or supervision of any commercial establishment, shall knowingly:
2. sell, furnish, present, distribute, allow to view, or otherwise disseminate
to a minor, with or without consideration, any material which is harmful to
minors.�

2) statute applies to dissemination to minors of print materials & internet
images that are harmful to minors

in oklahoma, a public library and its employees can be held liable for the
dissemination to minors of print materials and internet images that are harmful
to minors. material as defined in 21 okl. st. § 1040.75, includes: �any
book, magazine, newspaper, pamphlet, poster, print, picture, figure, image,
description, motion picture film, record, recording tape, cd-rom disk, magnetic
disk memory, magnetic tape memory, or video tape� evidently the statute is broad
and can be construed to include both print materials and internet images.

oregon�statute does not apply to public libraries

conclusion: public libraries and their employees cannot be held liable in oregon,
under ors 167.065 (1999), regarding furnishing obscene materials to minors.
in accordance with ors 167.085, an affirmative defense is available to bona
fide public libraries and those acting in the course of their employment as
employees of a library. an examination of the language of the defense clearly
indicates that public libraries and their employees cannot be held liable for
furnishing obscene materials to minors.

analysis:
1) statute contains a defense for public libraries and their employees
public libraries cannot be held liable for furnishing obscene materials to minors
under ors 167.065, because they can clearly invoke the affirmative defense set
forth in ors 167.085(2), which states: �in any prosecution under ors 167.065
to 167.080, it is an affirmative defense that �the defendant was a bona fide
school, museum or public library, or was acting in the course of employment
as an employee of such organization or of a retail outlet affiliated with and
serving the educational purpose of such organization�� the cited language immunizes
library employees as well, except where possibly it could be argued that the
employee�s commission of an act in violation of the statute is committed outside
the �course of employment.�

pennsylvania � statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under the pennsylvania statute,
18 pa.c.s. § 5903(c)(2001), regarding the dissemination to minors by sale,
loan or otherwise, of explicit sexual materials, including print materials,
and internet images, because public libraries are exempt from prosecution in
accordance with 18 pa.c.s. § 5903(j).

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted under the pennsylvania statute, 18 pa.c.s.
§ 5903(c), regarding the dissemination to minors of explicit sexual materials,
because public libraries are clearly within the exemption set forth in 18 pa.c.s.
§ 5903(j), which states: �nothing in this section shall apply to any recognized
historical society or museum accorded charitable status by the federal government,
any county, city, borough, township or town library, any public library, any
library of any school, college or university or any archive or library under
the supervision and control of the commonwealth or a political subdivision.�

rhode island�statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under
r.i. gen. laws §11-31-10 (2001), regarding the sale or exhibition to minors
of indecent publications, pictures or articles, because the statute is premised
upon the commercial dissemination of indecent materials.

analysis:
1) statute applies to the commercial dissemination of indecent materials
r.i. gen. laws §11-31-10, regarding the sale or exhibition of indecent
publications, pictures, or articles does not apply to public libraries because
the statute is premised upon the commercial dissemination of indecent material.
r.i. gen. laws §11-31-10(b), provides that there will be prosecution under
the statute for: �every person who willfully or knowingly engages in the business
of selling, lending, giving away, showing, advertising for sale, or distributing
to any person under the age of eighteen (18) years,� indecent materials.

as a necessary element for conviction under this section, the state must prove
that the accused engaged in the conduct covered by this section for commercial
gain. state v. koohy, 105 r.i. 197, 250 a.2d 711(1969). since public libraries
are not commercial entities and do not exchange their materials for commercial
gain, they can not be prosecuted under the statute.

south carolina � public libraries and their employees potentially liable under
statute

conclusion: public libraries and employees of public libraries, under certain
circumstances, could be held liable in south carolina under s.c. code ann. §
16-15-385(a) (2000), regarding the dissemination of harmful material to minors.
although in accordance with s.c. code ann. § 16-15-385(c)(2), an affirmative
defense is available where the defendant is a public library carrying out its
�legitimate function,� or an employee of such an organization acting in that
capacity and carrying out a �legitimate duty� of his employment, the applicability
of the defense to public libraries and their employees is fact specific, and
public libraries and their employees would not, under all factual scenarios,
be permitted to invoke the defense. since s.c. code ann. § 16-15-385(a)
pertains to the non-commercial dissemination of materials that are harmful to
minors, public libraries and their employees could be held liable under the
statute, where they are unable to invoke the defense.

analysis:

1) statute could apply to a public library that is not carrying out its legitimate
function, or to a library employee who is not acting carrying out a legitimate
duty of his employment
a public library and library employees could be held liable in a prosecution
under s.c. code ann. § 16-15-385(a), regarding the dissemination of harmful
material to minors. in accordance with § 16-15-385(c)(2), it is an affirmative
defense that �the defendant was a school, church, museum, public, school, college,
or university library, government agency, medical clinic, or hospital carrying
out its legitimate function, or an employee or agent of such an organization
acting in that capacity and carrying out a legitimate duty of his employment.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries and
their employees is subject to varying fact-specific interpretations. however,
one can readily anticipate factual scenarios where public libraries fail to
carry out their legitimate functions, and their employees act outside of their
legitimate duties of employment, in disseminating harmful materials to minors.
for example, where a library and/or library employee knowingly permit a minor
to access an unfiltered internet screen, in contravention to the library�s established
internet use policy requiring minors to use filtered terminals, the library
would be acting in opposition to its legitimate function by providing this material
to minors, and arguably the employee would not be carrying out a legitimate
duty of his employment. under such circumstances, in a prosecution under the
statute, a library and the offending employee might be unable to invoke the
defense.

2) statute applies to the non-commercial dissemination of materials not suitable
for minors
since s.c. code ann. § 16-15-385(a) pertains to the non-commercial dissemination
of materials that are harmful to minors, a public library and its employees
could be held liable under the statute, where they are unable to invoke the
aforementioned defense. s.c. code ann. § 16-15-385(a)(1) states, �(a) a
person commits the offense of disseminating harmful material to minors if, knowing
the character or content of the material, he: (1) sells, furnishes, presents,
or distributes to a minor material that is harmful to minors.�

3) statute applies to both print materials and internet images

in south carolina, a public library and its employees could be held liable
for the dissemination to minors of both print materials and internet images
that are harmful to minors. �material�, as defined in s.c. code ann. §
16-15-375 (2) means �pictures, drawings, video recordings, films, or other visual
depictions or representations but not material consisting entirely of written
words.� clearly the statute is broad and can be construed to encompass both
print materials and internet images.

south dakota � public libraries and their employees potentially liable under
statutes

conclusion: employees of public libraries, under certain circumstances, could
be held liable in south dakota, under s.d. codified laws § 22-24-29 (2001)
for disseminating material harmful to minors. although in accordance with s.d.
codified laws § 22-24-31, an affirmative defense is available to public
libraries and those acting in their capacity as employees of a library, arguably
library employees could not invoke the defense under all circumstances.

under s.d. codified laws § 22-24-31 (2001), it is also an affirmative
defense that the minor involved was accompanied by his parent or guardian.

additionally, in accordance with s.d. codified laws § 22-24-56, the south
dakota legislature has also established a policy that requires public libraries
to restrict access to obscene materials on public access computers. in those
instances where public libraries do not develop such policies to restrict access,
they could be held liable for a minor�s access of obscene materials.

since s.d. codified laws § 22-24-29 pertains to the non-commercial dissemination
of print materials and internet images that are harmful to minors, public library
employees could be held liable under the statute, where they are unable to invoke
the defense.

analysis:
1) statute could apply to employee acting outside employment capacity in disseminating
material harmful to minors
employees of a public library could be prosecuted for disseminating material
harmful to minors under s.d. codified laws § 22-24-29. in accordance with
s .d. codified laws § 22-24-31(4), �in any prosecution for disseminating
material harmful to minors, it is an affirmative defense that: the defendant
was a bona fide school, college, university, museum or public library, or was
acting in his capacity as an employee of such an organization or a retail outlet
affiliated with and serving the educational purposes of such an organization.�

although the defense protects a bona fide library and public library employees
acting within their capacity, arguably the defense would not be available to
public library employees who act beyond their capacities as employees, without
authority. for example, where a public library employee knowingly permits a
minor to access an unfiltered internet screen, in contravention to the library�s
established internet use policy requiring minors to use filtered terminals,
and where the minor obtains material which is harmful to him, the library employee
might be unable to invoke the aforementioned defense.

2) public libraries that fail to develop and implement a local policy that
establishes measures to restrict minors from computer access to obscene materials,
could be held liable for damages

notably, the south dakota legislature has established a policy with requires
public libraries to restrict access to obscene materials on public access computers.
in accordance with s.d. codified laws § 22-24-56, �any public library that
provides a public access computer shall develop and implement, by january 1,
2001, a local policy that establishes measures to restrict minors from computer
access to obscene materials. furthermore, �any public school that complies with
§ 22-24-55 or any public library that complies with § 22-24-56 may
not be held liable for any damages that may arise from a minor gaining access
to obscene materials through the use of a public access computer that is owned
or controlled by the public school or public library.� s.d. codified laws §
22-24-57. thus, in those instances where public libraries do not develop policies
to restrict minors from accessing obscene materials on their computers, they
could be held liable for damages resulting from a minor�s access to materials
harmful to minors.

3) statute applies to the non-commercial dissemination of materials not suitable
for minors
since s.d. codified laws § 22-24-29 pertains to the non-commercial dissemination
of print materials and internet images that are harmful to minors, public library
employees could be held liable under the statute, where they are unable to invoke
the defense. s.d. codified laws § 22-24-29 states: �a person is guilty
of disseminating material harmful to minors when he knowingly gives or makes
available to a minor or promotes or possesses with intent to promote to minors,
or he knowingly sells or loans to a minor for monetary consideration any material
described in subdivision 22-24-27�

4) statute applies to both print materials and internet images

in south dakota, a public library could be held liable for the dissemination
to minors of both print materials and internet images that are harmful to minors.
s.d. codified laws § 22-24-27(6) defines "material," as �anything
tangible that is harmful to minors, whether derived through the medium of reading,
observation, or sound.� s.d. codified laws § 22-24-27(7) "matter"
or "material," any book, magazine, newspaper, or other printed or
written material; or any picture, drawing, photograph, motion picture, or other
pictorial representation; or any statue or other figure; or recording, transcription
or mechanical, chemical, or electrical reproduction; or any other articles,
equipment, machines, or materials�.� clearly, the broad definition of materials
can be construed to encompass print materials and internet images.

tennessee -- public libraries potentially liable under statute

conclusion: a public library could be held liable in tennessee, under tenn.
code ann. § 39-17-911(2001), for disseminating harmful materials to minors.
although a public library could invoke an affirmative defense to prosecution,
where the dissemination of the harmful materials to a minor was made while the
child was accompanied by his parent, legal guardian, or an adult with written
permission of the parent or legal guardian, the defense would apply to libraries
only in the most limited circumstances. one can more readily imagine scenarios
where a child accesses harmful materials in a public library, while he is unaccompanied
by a parent or guardian. thus, since the statute applies to the non-commercial
dissemination of print materials and internet images that are harmful to minors,
a public library could be held liable under the statute.

analysis
1) a public library could be held liable under the statute, for disseminating
harmful materials to minors who are not accompanied by their parents
a public library could be held liable under tenn. code ann. § 39-17-911,
for disseminating harmful materials to minors. in accordance with tenn. code
ann. § 39-17-911(d), �it is an affirmative defense to prosecution under
this section that the minor to whom the material or show was made available
or exhibited was, at the time, accompanied by the person's parent or legal guardian,
or by an adult with the written permission of the parent or legal guardian.�
one can readily anticipate numerous factual scenarios where children obtain
harmful materials in a library, unaccompanied by their parents. under such circumstances,
libraries would not be able to invoke the defense and could be held liable under
the statute.

2) statute applies to the non-commercial dissemination of harmful materials
to minors

since tenn. code ann. § 39-17-911 pertains to the non-commercial dissemination
of obscene materials to minors, public libraries could be held liable under
the statute, where they are unable to invoke the aforementioned defense. in
accordance with tenn. code ann. § 39-17-911(a), �it is unlawful for any
person to knowingly sell or loan for monetary consideration or otherwise exhibit
or make available to a minor,� material that is harmful to minors.

3) statute applies to promotion of print materials & internet images that
are harmful to minors

in tennessee, a public library can be held liable for the promotion of print
materials and internet images that are harmful to minors. harmful material as
referenced in tenn. code ann. § 39-17-911(a), includes: �(1) any picture,
photograph, drawing, sculpture, motion picture film, video game, computer software
game, or similar visual representation or image of a person or portion of the
human body, which depicts nudity, sexual conduct, excess violence, or sado-masochistic
abuse, and which is harmful to minors; or (2) any book, pamphlet, magazine,
printed matter, however reproduced, or sound recording, which contains any matter
enumerated in subdivision (a)(1), or which contains explicit and detailed verbal
descriptions or narrative accounts of sexual excitement, sexual conduct, excess
violence, or sado-masochistic abuse, and which is harmful to minors.� clearly
the language of the statute is broad, and can be construed to encompass both
print materials and internet images.

texas -- public libraries potentially liable under statute

conclusion: public libraries, under circumstances, could be prosecuted in texas,
under tex. penal code § 43.24(b)(2002) regarding the dissemination to minors
of materials harmful to minors. public libraries have available to them two
defenses that they could invoke in a prosecution under the statute. the first
defense, in accordance with tex. penal code § 43.24(c)(1) is available
where the sale, distribution or exhibition of the harmful material was by a
person having �educational justification�. the applicability of the defense
to public libraries is fact specific, and public libraries would not, under
all factual scenarios, be permitted to invoke the defense.

the second defense set forth in tex. penal code § 43.24(c)(2) would apply
to libraries only in those limited circumstances where libraries have disseminated
harmful materials to minors who were accompanied by a consenting parent or adult.
since tex. penal code § 43.24(b) pertains to the non-commercial dissemination
to minors of harmful print matter and internet images, public libraries could
be held liable under the statute, where the are unable to invoke the aforementioned
defenses

analysis:

1) statute could apply to public library where its dissemination of harmful
materials to minors is without educational justification
a public library could be held liable in a prosecution under tex. penal code
§ 43.24(a), regarding the dissemination to minors of materials harmful
to minors. in accordance with tex. penal code § 43.24(c)(1), it is a defense
to prosecution where the sale, distribution, or exhibition was by a person having
scientific, educational, governmental, or other similar justification�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries is subject
to varying fact-specific interpretations. one can readily anticipate numerous
factual scenarios where libraries disseminate harmful materials to children,
without educational justification. for example, where a 7 year old surfs the
net at an unfiltered computer terminal in a public library, in contravention
to library policy, and obtains materials which are not suitable for minors,
and where the child is not accessing the materials for a research project, a
library is without educational justification for disseminating the materials,
and it appears highly unlikely that a library would be able to invoke the �educational
justification� defense.

the second defense, as set forth in tex. penal code § 43.24(c)(2) is available
where: �(2) the sale, distribution, or exhibition was to a minor who was accompanied
by a consenting parent, guardian, or spouse.� this defense would apply to libraries
only in those limited circumstances where libraries have disseminated harmful
materials to minors who were accompanied by a consenting parent or adult. it
is easy to imagine numerous instances in which children might be given access
to harmful materials in a library, while they are unaccompanied by their parents.
in such situations, libraries would not be able to invoke the defense and could
be held liable under the statute.

2) statute applies to the non-commercial dissemination of obscene materials
to minors

since tex. penal code § 43.24(b) pertains to the non-commercial dissemination
to minors of obscene print matter and internet images that are harmful to minors,
public libraries could be held liable under the statute where the are unable
to invoke the aforementioned defenses. tex. penal code § 43.24(b)(1) states:
�(b) a person commits an offense if, knowing the material is harmful: (1) and
knowing the person is a minor, he sells, distributes, exhibits, possesses for
sale, distribution, or exhibition to a minor harmful material.�

3) statute applies to obscene print materials and internet images

in texas, a public library could be held liable for the dissemination to minors
of print materials and internet images that are harmful to minors. �material�
as defined in tex. penal code § 43.21(a)(2) means: �anything tangible that
is capable of being used or adapted to arouse interest, whether through the
medium of reading, observation, sound, or in any other manner, but does not
include an actual three dimensional obscene device.� clearly the definition
of �material� set forth in the statute is very broad and can be construed to
encompass both print materials and internet images.

utah � public libraries and their employees potentially liable under statute
where distribution of material is not for educational purposes

conclusion: public libraries and their employees, under certain circumstances,
could be held liable in utah, under utah code ann. § 76-10-1206 (2001),
regarding dealing in materials harmful to a minor. although in accordance with
utah code ann. § 76-10-1208 (2001), an affirmative defense is available
to those institutions or persons having scientific, educational, governmental
or other justification for possessing pornographic materials, arguably the defense
could not be invoked under all circumstances, by libraries and their employees.
moreover, since utah code ann. § 76-10-1206 pertains to the non-commercial
dissemination of print materials and internet images that are harmful to minors,
public libraries and their employees could be held liable under the statute,
where they are unable to invoke the defense.

analysis:
1) statute could apply to public libraries and their employees where their dissemination
of materials harmful to minors is without educational or other special justification
libraries and their employees could be prosecuted for disseminating materials
harmful to minors under utah code ann. § 76-10-1208. in accordance with
utah code ann. § 76-10-1208, � (1) it is an affirmative defense to prosecution
under this part that the distribution of pornographic material was restricted
to institutions or persons having scientific, educational, governmental, or
other similar justification for possessing pornographic material.�

upon examination of the statutory language, it is evident that the language
of the defense is vague. thus, in the absence of case law in this jurisdiction
interpreting the defense statute, its applicability to public libraries is subject
to varying fact-specific interpretations. one can readily anticipate numerous
factual scenarios where public libraries and their employees distribute to children
materials that are harmful to minors, and for which the minors have no educational
or other special justification for possessing. for example, where a 7 year old
surfs the net at an unfiltered computer terminal in a public library, in contravention
to library policy, and obtains materials that are not suitable for minors, without
educational justification such as a research project, it appears highly unlikely
that a public library and its employees would be able to invoke the �educational
justification� defense.

notably in utah, the state legislature has implemented an internet and online
access policy, as set forth in utah code ann § 9-7-215 which provides:
�no state funds shall be provided to any public library that offers use of the
internet or an online service to the public unless the library adopts and enforces
a policy to restrict access by minors to internet or online sites that contain
obscene material.�

2) statute applies to the non-commercial dissemination of materials not suitable
for minors

since utah code ann. § §76-10-1206 pertains to the non-commercial
dealing of material harmful to minors, public libraries and their employees
could be held liable under the statute, where they are unable to invoke the
aforementioned defense. utah code ann. § 76-10-1206 states: (1) a person
is guilty of dealing in material harmful to minors when, knowing that a person
is a minor, or having failed to exercise reasonable care in ascertaining the
proper age of a minor, he: (a) intentionally distributes or offers to distribute,
exhibits or offers to exhibit to a minor any material harmful to minors;
(b) intentionally produces, presents, or directs any performance before a minor,
that is harmful to minors; or (c) intentionally participates in any performance
before a minor, that is harmful to minors.�

3) statute applies to both print materials and internet images

in utah, a public library could be held liable for the dissemination to minors
of both print materials and internet images that are harmful to minors. utah
code ann. § 76-10-1201(6) defines �material� as: �anything printed or written
or any picture, drawing, photograph, motion picture, or pictorial representation,
or any statue or other figure, or any recording or transcription, or any mechanical,
chemical, or electrical reproduction, or anything which is or may be used as
a means of communication.� clearly, the broad definition of materials can be
construed to encompass print materials and internet images.

vermont � employees of public libraries potentially liable under statue

conclusion: employees of public libraries, under certain circumstances, could
be prosecuted in vermont, under 13 v.s.a. § 2802 (2001), for disseminating
indecent material to a minor in the presence of the minor. although in accordance
with 13 v.s.a. § 2805, a defense is available to public libraries and those
acting within their capacities as employees of a public library, arguably library
employees could not invoke the defense under all circumstances. since 13 v.s.a.
§ 2802 pertains to the non-commercial dissemination to minors of indecent
print materials and internet images, public library employees could be prosecuted
under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to prosecute an employee acting outside his capacity
employees of a public library could be prosecuted for disseminating indecent
material to minors under 13 v.s.a. § 2802. in accordance with 13 v.s.a.
§ 2805(b)(3), it shall be an affirmative defense, �that the defendant was
a bona fide school, museum or public library, or was a person acting in the
course of his employment as an employee or official of such organization or
of a retail outlet affiliated with and serving the educational purpose of such
organization.�

although the aforementioned defense protects a bona fide library and public
library employees acting within their capacity, arguably the defense would not
be available to public library employees who act beyond their capacities as
employees in their disseminating of indecent material to minors. for example,
where a public library employee knowingly permits a minor to access an unfiltered
internet screen in contravention to the library�s established internet use policy
which requires minors to use filtered terminals, whereby the minor obtains indecent
internet materials, in a prosecution under the statute, the library employee
might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial dissemination of indecent materials
to minors
since 13 v.s.a. § 2802 pertains to the non-commercial dissemination to
minors of indecent print materials and internet images, public library employees
could be prosecuted under the statute, where they are unable to invoke the defense.
13 v.s.a. § 2802 (a) states: � no person may, with knowledge of its character
and content, sell, lend, distribute or give away to a minor� indecent materials
to minors.

3) statute applies to both print materials and internet images

in vermont, a public library employee could be held liable for the dissemination
to minors of both print materials and internet images that are harmful to minors.
indecent material as referenced in 13 v.s.a. § 2802 (a), includes: �(1)
any picture, photograph, drawing, sculpture, motion picture film, or similar
visual representation or image, including any such representation or image which
is stored electronically, of a person or portion of the human body which depicts
nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors;
or (2) any book, pamphlet, magazine, printed matter however reproduced, or sound
recording which contains any matter enumerated in

subdivision (1) of this subsection, or explicit and detailed verbal descriptions
or narrative accounts of sexual excitement, sexual conduct or sado-masochistic
abuse and which, taken as a whole, is harmful to minors. clearly, the broad
definition of materials can be construed to encompass both internet images and
print materials.

virginia � statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under
va st § 18.2-391, regarding the dissemination for commercial purpose of
material that is harmful to juveniles, because the statute is premised upon
the commercial dissemination of harmful materials.

analysis:
1) statute applies to the commercial dissemination of harmful materials to minors
va st § 18.2-391, regarding the dissemination of material that is harmful
to minors does not apply to public libraries because the statute is premised
upon the commercial dissemination of indecent material. va st § 18.2-391(a)
provides: it shall be unlawful for any person knowingly to sell, rent or loan
to a juvenile, or to knowingly display for a commercial purpose in a manner
whereby juveniles may examine and peruse,� material which is harmful to juveniles.
since public libraries are not commercial entities and do not sell, rent, loan
or display their materials for commercial purpose, they can not be prosecuted
under the statute.

washington � statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under washington�s statute,
rev. code wash. (arcw) § 9.68.060 (3)(d) (2001), regarding the dissemination
of erotic material to a minor, because public libraries are exempt from prosecution
in accordance with rev. code wash. (arcw) § 9.68.100.

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted in washington, under rev. code wash.
(arcw) § 9.68.060 (3)(d) (2001), regarding the dissemination of erotic
material to a minor, because public libraries are clearly within the exemption
set forth in rev. code wash. (arcw)

§ 9.68.100 which states: �nothing in rcw 9.68.050 through 9.68.120 shall
apply to the circulation of any such material by any recognized historical society
or museum, the state law library, any county law library, the state library,
the public library, any library of any college or university, or to any archive
or library under the supervision and control of the state, county, municipality,
or other political subdivision.�

west virginia � public libraries potentially liable under statute

conclusion: public libraries, under circumstances, could be prosecuted in west
virginia, under w. va. code § 61-8a-2 (2001), regarding the distribution
and display to minors of obscene matter. two exemptions could potentially apply
to exempt public libraries from criminal prosecution. the first exemption, in
accordance with § 61-8a-3(b), would exempt public libraries with regard
to their display or distribution of any obscene matter to minors, only in those
situations when the minor was accompanied by his parent. clearly, a library
could invoke the exemption only in limited situations, and could be prosecuted
for distributing obscene matter to minors, where the child was unaccompanied
by his parent.

the second exemption set forth in w. va. code § 61-8a-3(e) would apply
to exempt libraries only in limited circumstances with regard to the distribution
of obscene internet materials to minors. under the exemption, a library could
invoke the exemption with regard to internet matters, only where they have taken
proper procedures to prevent access to the matter by minors. where such precautions
have not been taken, they could be prosecuted under the statute. since w. va.
code § 61-8a-2 pertains to the non-commercial dissemination of obscene
print matter and internet images to minors, public libraries could be held liable
under the statute, where the are unable to invoke the defense

analysis
1) public libraries are liable under the statute, where they disseminate obscene
matter to minors who are not accompanied by their parents, and where they have
failed to take proper procedures to prevent access to minors of obscene internet
matter

public libraries could be held liable for disseminating obscene matter to minors,
under

w. va. code § 61-8a-2. in accordance with the exemption set forth in w.
va. code § 61-8a-3(b), the criminal provisions of this article do not apply
to: � a public library, or museum, which is displaying or distributing any obscene
matter to a minor only when the minor was accompanied by his or her parent.�
one can readily anticipate numerous factual scenarios where children could access
obscene matter in a library, and do so, unaccompanied by their parents. in such
a situation, a library would not be able to invoke the exemption and could be
prosecuted under the statute.

the second exemption set forth in w. va. code § 61-8a-3(e) would exempt
libraries, with regard to their distribution of obscene internet materials to
minors, only in limited circumstances. under w. va. code § 61-8a-3(e),
the criminal provisions of this article do not apply to: � a person who routinely
distributes matter by the use of telephone computer network or the internet
and who distributes such matter to any minor under the age of eighteen years
after the person has taken reasonable measures to prevent access by minors to
the obscene matter.� where a public library has not taken proper precautions
and measures to prevent access to minors of obscene matter through the internet,
for example, by the use of terminal filters, a library would not be able to
invoke the exemption, and could be prosecuted under the statute.

2) statute applies to the non-commercial dissemination of obscene materials
to minors

since w. va. code § 61-8a-2 pertains to the non-commercial dissemination
of obscene matter to minors, public libraries could be held liable under the
statute, where they are unable to invoke the aforementioned defenses. w. va.
code § 61-8a-2 states: �any adult, with knowledge of the character of the
matter, who knowingly and intentionally distributes, offers to distribute, or
displays to a minor any obscene matter,� is guilty of a felony under the section.

3) statute applies to obscene print materials and internet images

in west virginia, a public library could be held liable for the dissemination
to minors of obscene print materials and internet images. material as defined
in w. va. code § 61-8a-1, matter means: �any visual, audio, or physical
item, article, production, transmission, publication, exhibition, or live performance,
or reproduction thereof, including any two or three dimensional visual or written
material, film, picture, drawing, video, graphic, or computer generated or reproduced
image; or any book, magazine, newspaper or other visual or written material;
or any motion picture or other pictorial

representation; or any statue or other figure; or any recording, transcription,
or mechanical, chemical, or electrical reproduction; or any other articles,
video laser disc, computer hardware and software, or computer generated images
or message recording, transcription, or object, or any public or commercial
live exhibition performed for consideration or before an audience of one or
more.� clearly by the plain language of the statute, the statute applies to
both print materials and internet images.

wisconsin� statute does not apply to public libraries

conclusion: public libraries and their employees cannot be prosecuted under
the wisconsin statute, wis. stat. § 948.11 (2000), regarding exposing a
child to harmful material, because public libraries and their employees are
exempt from prosecution in accordance with wis. stat. § 948.11(4).

analysis:

1) statute contains an exemption for public libraries and their employees

public libraries cannot be prosecuted under the wisconsin statute, wis. stat.
§ 948.11, regarding the dissemination to minors of explicit sexual materials,
because public libraries are clearly within the exemption set forth in wis.
stat. § 948.11(4)(b) which states that �no person who is an employee, a
member of the board of directors or a trustee of any of the following is liable
to prosecution for violation of this section for acts or omissions while in
his or her capacity as an employee, a member of the board of directors or a
trustee: 5. a library that receives funding from any unit of government.� the
exemption from prosecution of libraries, educational institutions and their
employees and directors does not violate equal protection rights. state v. thiel,
183 wis. 2d 505, 515 n.w.2d 847 (1994).

wyoming � statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under
the wyoming statute, wyo. stat. § 6-4-302 (2001), regarding promoting obscenity
to minors, because public libraries and their employees are exempt from prosecution
in accordance with wyo. stat. § 6-4-302(c)(ii).

analysis:

1) statute contains an exemption for public libraries and their employees

neither public libraries nor their employees can be prosecuted under the wyoming
statute, wyo. stat. § 6-4-302, regarding promoting obscenity to minors,
because public libraries and their employees are clearly within the exemption
set forth in wyo. stat. § 6-4-302(c)(ii), which states: �(c) this section
shall not apply to any person who may produce, reproduce, possess or disseminate
obscene material: (ii) in the course of bona fide school, college, university,
museum or public library activities or in the course of employment of such an
organization.�

[1] in accordance with miss. code ann. §97-5-27(2), �any material is sexually
oriented if the material contains representations or description, actual or
simulated, of masturbation, sodomy, excretory functions, lewd exhibition of
the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual
stimulation of gratification), homosexuality, lesbianism, bestiality, sexual
intercourse, or physical contact with a person�s clothed or unclothed genitals,
public area, buttocks, or the breast or breasts of a female for the purpose
of sexual stimulation, gratification or perversion.�